**EXHIBIT 10.61****Advanced BioEnergy, LLC****Restricted Unit Agreement**Name of Holder:                      Perry C. Johnston   No. of Restricted Units:                      15,000 Date of Grant:                      October 1, 2007   Restricted Unit Vesting Schedule (Cumulative):       Vesting Date(s)  That Vest on Such Date Percentage of Restricted UnitsOctober 1, 2008  20%October 1, 2009  20%October 1, 2010  20%October 1, 2011  20%October 1, 2012  20%     This is a Restricted Unit Agreement **(“Agreement”)**between Advanced BioEnergy, LLC, a Delawarelimited liability company (the **“Company”),**and Perry C. Johnston (the **“Employee”),**an employee ofthe Company.**Background**     A. The board of directors of the Company (the **“Board”)**or a committee of two or moredirectors of the Company (the **“Committee”)**has the authority to grant and administer equity awards(if the Board has not appointed a committee to administer the awards, then the Board shallconstitute the Committee).     B. The Committee has determined that the Employee is eligible to receive a grant of restrictedunits of the Company pursuant to the terms of Section 4(h) of that certain Employment Agreementdated as of July 7, 2007 between the Company and the Employee.     C. The Committee has determined that this purpose can best be achieved by granting theEmployee restricted units on the terms and conditions and subject to the restrictions set forthherein.     The parties hereto agree as follows:
 

 
**Terms and Conditions**1. **Issuance and Terms of Restricted Units****.**     (a) **Grant of Restricted Units.**The Company hereby grants to the Employee,effective as of the Date of Grant specified above, the number of restricted unitsspecified at the beginning of this Agreement.     (b) **Rights as Holder.**Each restricted unit granted hereunder (a **“Restricted Unit”)**represents one Unit of the Company as defined in the Company’s Third Amended andRestated Operating Agreement, as it may be amended from time to time (the **“LLC****Agreement”),**and is subject to the terms of the LLC Agreement as well as therestrictions specified in this Agreement. Subject to the provisions of the LLCAgreement, the Employee will have all rights of a member of the Company withrespect to each Restricted Unit (including the right to receive distributions, ifany, and the right to vote such Restricted Unit).     (c) **Unit Certificates.**The Restricted Units will be evidenced by one ormore duly issued unit certificates registered in the name of the Employee. Eachcertificate evidencing any Restricted Units will contain such legends andtransfer instructions or limitations as may be determined or authorized by theCompany in its sole discretion and as otherwise required under this Agreementand the LLC Agreement. The Company may, in its discretion, retain custody of anycertificates representing Restricted Units until such Restricted Units vest inaccordance with this Agreement.2. **Forfeiture and Transfer Restrictions****.**     (a) **Forfeiture.**Except as provided in Sections 3(b) and (c), any RestrictedUnits not yet vested will be forfeited by the Employee and deemed immediatelycancelled and the Employee will thereafter have no right, title or interestwhatsoever in such Restricted Units if the Employee’s employment with theCompany and its Affiliates (as defined in Appendix A to this Agreement)terminates. Upon forfeiture of any Restricted Units, the Employee agrees topromptly return to the Company any certificate(s) representing such RestrictedUnits, and appoints the Secretary of the Company as his attorney in fact totransfer any such forfeited Restricted Units on the books of the Company and toeffect their cancellation.     (b) **Limitation on Transfer.**Until such time as the Restricted Units havevested as provided in this Agreement, the Employee shall not transfer theRestricted Units and the Restricted Units shall not be subject to pledge,hypothecation, execution, attachment or similar process. Notwithstanding theprior sentence, any Restricted Units, whether vested or unvested, will in anyevent be subject to any limitations on transfer set forth in the LLC Agreementand applicable Federal and state securities laws. Any attempt to assign,transfer, pledge, hypothecate or otherwise dispose
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of any Restricted Units contrary to the provisions hereof or thereof, and anyattempt to levy any attachment or pursue any similar process with respect tothem, shall be null and void.3. **Vesting of Restricted Units****.**     (a) **Normal Vesting.**The Restricted Units will vest in the amounts and onthe dates specified in the Schedule at the beginning of this Agreement. OnceRestricted Units have vested pursuant to this Section 3, they shall no longerbe subject to forfeiture under Section 2(a) of this Agreement, and will not besubject to any further restrictions under this Agreement, but will continue tobe subject to any restrictions on transfer set forth in the LLC Agreement or asotherwise agreed to by the Employee.     (b) **Death or Disability; Termination without Cause; Termination for GoodReason.**If the Employee’s employment with the Company and its Affiliatesterminates because of the Employee’s death or Disability (as defined inAppendix A to this Agreement), or if Company terminates the Employee’semployment with Company without Cause (as defined in the Employee’s EmploymentAgreement with Company), or if Employee terminates his employment with Companyfor Good Reason (as defined in the Employee’s Employment Agreement withCompany), the Restricted Units will automatically vest in full.     (c) **Change in Control.**If a Change in Control (as defined in Appendix Ato this Agreement) occurs, the Restricted Units will automatically vest infull.4. **Tax Withholding****.**     (a) **Withholding.**The parties hereto recognize that the Company may beobligated to withhold federal and state taxes or other taxes upon the issuanceor vesting of the Restricted Units. The Employee agrees that, at such time, ifthe Company is required to withhold such taxes, the Employee will promptly payto the Company, in cash and upon demand by the Company, such amounts as shallbe necessary to satisfy such obligation.     (b) **Put Right to Satisfy Withholding Taxes.**Within five days after any ofthe Restricted Units vest in accordance with the terms of this Agreement, theCompany shall send written notice (the **“Valuation Notice”)**to the Employeespecifying the Board’s or the Committee’s determination of the fair marketvalue of the Restricted Units that vested as of such vesting date. Within tendays after the receipt of the Valuation Notice, the Employee shall have theright to require that the Company purchase up to 40% of the Restricted Unitsthat vested as of such vesting date by giving written notice to the Companyspecifying the number of Restricted Units that the Employee desires to sell tothe Company pursuant to this Section 4(b). The closing with respect to suchtransfer shall occur within five days following receipt by the Company of theEmployee’s notice specifying the number of Restricted Units that the Employeedesires to sell to the Company. The time periods specified in this Section4(b) may be tolled for a reasonable period of time in the event that theCompany determines that any action taken by Employee under this Section 4(b)would otherwise violate the Company’s insider trading policies then in effect.The purchase price for any Restricted Units purchased by the Company hereundershall be paid by the Company to the Employee in cash or, at the election ofthe
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Employee, retained by the Company and used to satisfy all or a portion of the Employee’sobligation to remit withholding taxes to the Company pursuant to Section 4(a) hereof.5. **Restrictive Legends and Stop-Transfer Orders****.**     (a) **Legends.**In addition to any legends required by the LLC Agreement or otherwise,the certificate or certificates representing the Restricted Units shall bear thefollowing legend (as well as any legends required by applicable state and federal limitedliability companyand securities laws) noting the existence of the restrictions and the Company’srights set forth in this Agreement:“THE UNITS REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY INACCORDANCE WITH THE TERMS OF A RESTRICTED UNIT AGREEMENT BETWEEN THECOMPANY AND THE HOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OFTHE COMPANY.”     (b) **Stop-Transfer Notices.**The Employee agrees that, in order to ensure compliancewith the restrictions referred to herein, the Company may issue appropriate “stoptransfer” instructions to its transfer agent, if any, and that, if the Company transfersits own securities, it may make appropriate notations to the same effect in its ownrecords.     (c) **Refusal to Transfer.**The Company shall not be required (i) to transfer on itsbooks any Restricted Units that have been sold or otherwise transferred in violation ofany of the provisions of this Agreement or (ii) to treat as owner of the RestrictedUnits or to accord the right to vote or pay distributions to any purchaser or othertransferee to whom the Restricted Units shall have been so transferred.6. **Interpretation of this Agreement****.**All decisions and interpretations made bythe Committee with regard to any question arising hereunder shall be binding andconclusive upon the Company and the Employee.7. **Discontinuance of Employment****.**This Agreement shall not give the Employee aright to continued employment with the Company or any Affiliate, nor does this Agreementrestrict the Company or any Affiliate employing the Employee from terminating hisemployment at any time and otherwise dealing with the Employee without regard to theeffect that such termination may have upon him under this Agreement.8. **Adjustment for Changes in Capitalization****.**In the event of anyreorganization, merger, consolidation, recapitalization, liquidation, reclassification,unit dividend, unit split, combination of Units, rights offering, or extraordinarydividend or divestiture (including a spin-off), or any other change in the structure orUnits of the Company, including any conversion by the Company into to a corporate form,the Committee (or if the Company does not survive any such transaction, the board ofdirectors or an authorized committee of the board of directors of the surviving company)shall, without the consent of the Employee, make such adjustments as it determines inits discretion to be appropriate as to the number and kind of securities subject to thisAgreement in order to prevent dilution or enlargement of the rights of the Employee.
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9. **Binding Effect****.**This Agreement shall be binding in all respects onthe heirs, representatives, successors and assigns of the Employee.10. **Choice of Law****.**This Agreement is entered into under the laws of theState of Delaware and shall be construed and interpreted thereunder (withoutregard to its conflict of law principles).11. **Entire Agreement****.**This Agreement sets forth the entire agreement andunderstanding of the parties hereto with respect to the issuance of theRestricted Units and supersedes all prior agreements, arrangements, plans, andunderstandings relating to the issuance of these Restricted Units. The Employeeacknowledges that the Company has directed the Employee to seek independentadvice regarding the applicable provisions of the Internal Revenue Code of 1986,and the income tax laws of any municipality, state or foreign country in whichthe Employee may reside or in which the Company does business.12. **Amendment and Waiver****.**This Agreement may be amended, waived,modified, or canceled only by a written instrument executed by the parties or,in the case of a waiver, by the party waiving compliance.13. **Restricted Units Subject to LLC Agreement****.**The Employee acknowledgesthat the Restricted Units granted under this Agreement are subject to theCompany’s LLC Agreement and any applicable federal or state laws, rules orregulations. The Employee acknowledges and agrees that the Employee will becomea party to the Company’s LLC Agreement, as currently in effect, if such Employeeis not already a party to that agreement.     IN WITNESS WHEREOF, the Employee and the Company have executed this Agreementby their signatures below.       /s/ Perry C. Johnston         Perry C. Johnston         Date: 12/27/07         **ADVANCED BIOENERGY, LLC**           By: /s/ Revis L. Stephenson III           Name: Revis L. Stephenson    Its: Chairman and CEO           Date: 12/27/07  
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**Appendix A****“Affiliates”**for purposes of the Restricted Unit Agreement shall mean eachcorporation, partnership, LLC or other entity that controls the Company, iscontrolled by the Company, or is under common control with the Company (in eachcase, “control” meaning the direct or indirect ownership of 50% or more of alloutstanding equity interests).**“Change in Control”**for purposes of the Restricted Unit Agreement shall mean (andoccur when):(1) The acquisition by any individual, entity or group (within the meaning ofSections 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the“Exchange Act”)) of beneficial ownership (within the meaning of Exchange ActRule 13d-3) of 30% or more of the then- outstanding membership interests of theCompany (the **“Outstanding Units”);**provided, however, that the followingacquisitions shall not constitute a Change in Control:(A) any acquisition of voting securities of the Company directly from theCompany or by the Company or any of its wholly-owned subsidiaries,(B) any acquisition of voting securities of the Company by any employeebenefit plan (or related trust) sponsored or maintained by the Company orany of its subsidiaries, or(C) any acquisition by any entity with respect to which, immediatelyfollowing such acquisition, more than 70% of, respectively, thethen-outstanding shares of voting securities of such entity is thenbeneficially owned, directly or indirectly, by all or substantially all ofthe individuals and entities who were the beneficial owners, respectively,of the Outstanding Units immediately before such acquisition insubstantially the same proportions as was their ownership, immediatelybefore such acquisition, of the Outstanding Units;(2) Individuals who, as of the Date of Grant, constitute the Board (the**“Incumbent Board”)**cease for any reason to constitute at least a majority of theBoard; provided, however, that any individual becoming a director of the Boardafter the Date of Grant whose election, or nomination for election by theCompany’s Unit holders, was approved by a vote of at least a majority of thedirectors then comprising the Incumbent Board shall be considered a member ofthe Incumbent Board, but excluding, for this purpose, any such individual whoseinitial assumption of office occurs as a result of an actual or threatenedelection contest;(3) Consummation of a reorganization, merger, consolidation or statutoryexchange of Outstanding Units, unless immediately following such reorganization,merger, consolidation or exchange, all or substantially all of the individualsand entities who were the beneficial owners of the Outstanding Units immediatelybefore such reorganization, merger, consolidation or exchange beneficially own,directly or indirectly, more than 70% of the then-outstanding voting
 

 
securities entitled to vote generally in the election of directors, as the case may be,of the entity resulting from such reorganization, merger, consolidation or exchange insubstantially the same proportions as was their ownership, immediately before suchreorganization, merger, consolidation or exchange, of the Outstanding Units;(4) Consummation of a sale or other disposition of all or substantially all of the assetsof the Company, other than to an entity with respect to which, immediately following suchsale or other disposition, more than 70% of, respectively, the then-outstanding votingsecurities of such entity is then beneficially owned, directly or indirectly, by all orsubstantially all of the individuals and entities who were the beneficial owners of theOutstanding Units immediately before such sale or other disposition in substantially thesame proportion as was their ownership, immediately before such sale or otherdisposition; or(5) Approval by the Unit holders of the Company of a complete liquidation or dissolutionof the Company.     Notwithstanding the above, a Change in Control will not be deemed to occur if theacquisition of the 30% or greater interest referred to in clause (1) is by a group,acting in concert, that includes the Employee or if at least 30% of the then-outstandingvoting securities of the surviving entity or of any entity acquiring all orsubstantially all of the assets of the Company shall be beneficially owned, directly orindirectly, immediately after a reorganization, merger, consolidation, statutory shareexchange or disposition of assets referred to in paragraphs (3) or (4) by a group,acting in concert, that includes the Employee.**“Disability”**for purposes of the Restricted Unit Agreement shall mean the inability ofEmployee to perform on a full-time basis the duties and responsibilities of Employee’semployment with the Company by reason of illness or other physical or mental impairmentor condition, if such inability continues for an uninterrupted period of 90 days or formore than 90 complete days during any 12-month period.
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